Summary: Ms B complains about the Council’s response to requests made over several years that it tackles noise from a local business. We do not fault the Council for its judgment that it cannot take action to prevent the noise Ms B complains about. However, we do find the Council at fault for poor customer service causing Ms B unnecessary time, trouble and frustration. The Council accepts this finding and at the end of this statement we explain the action it has agreed to take to remedy that injustice.

The complaint

1. I have called the complainant ‘Ms B’. She says that since 2013 she has experienced unwanted noise and some anti-social behaviour from nearby business premises. Ms B complains the Council’s response has been ineffective as it has not caused the unwanted noise to reduce or stop. Ms B also complains the Council has not taken proper account of her mental health illness and has instead used this as a reason not to act to prevent the unwanted noise.
2. Ms B says because of this she has experienced unnecessary distress from the noise and from the Council’s response to her service requests and complaint.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. Before issuing this decision statement I considered:

• Ms B’s written complaint to the Ombudsman and supporting information she provided in a telephone conversation.
• Information provided by the Council in response to written enquiries and Ms B’s comments on the same.
• Relevant law and policy as explained in the text below.
• Comments made by Ms B and the Council in response to a draft decision statement where I set out my proposed thinking about the complaint.

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What I found

The Council’s legal powers and policy

8. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990).The noise complained about may originate from various sources. For example, loud music, barking dogs, noisy neighbours or noise from industry, trade or business.
9. For a noise to be a ‘statutory nuisance’ it must do one of the following:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.

10. If the Council considers a noise is a statutory nuisance then it has the power to serve an abatement notice on the source of the noise. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice the Council may prosecute resulting in a fine.
11. In investigating reports of problem noise, the Council says that it follows advice issued by government on “Neighbourhood Noise Policies and Practice for Local Authorities”. The guidance says that councils should ensure they keep “proper records […] to track progress of an investigation and action taken in a timely manner”. The guidance sets out a requirement of the Environmental Protection Act is for the Council to “take such steps as are reasonably practicable” to investigate alleged noise nuisance.
12. Any person who receives an abatement notice has the power to appeal it to the Magistrate’s Court. For that reason, before a council serves such a notice it will want robust evidence capable of persuading the court that its actions in serving the notice are reasonable and proportionate. In a passage which considers evidence gathering, government guidance says diary sheets kept by the person reporting noise “can form a useful component of the evidence” on which a council may rely if taking enforcement. But it also says authorities should use other methods to try and witness noise such as observation by officers and use of sound recording. The guidance also encourages councils to have an ‘out of hours’ service allowing it to respond to residents reporting noise outside usual business hours. During the events covered by this complaint the Council has operated such a service between Thursday and Sundays allowing for reports of noise between 8.30pm and 3.30am.
13. There is no set level at which a noise becomes a statutory nuisance. Suitably qualified officers must use their professional judgment. The government guidance says “in determining whether a noise problem amounts to a statutory nuisance, regard should be had to a number of factors, including:

• the level and type of noise;
• its duration;
• the time of day or night when the noise occurs;
• whether any aggravating characteristics are present;
• any particular sensitivity of the complainant; (Councils cannot take account that certain individuals affected by unwanted noise may have a greater sensitivity to it because of physical or mental health issues).
• the character of the neighbourhood where the noise occurs;
• the number of persons affected; […]”.

14. Local authorities also have powers under the Anti-Social Behaviour, Crime and Policing Act 2014 to take action against noise which they consider anti-social but which may not be a statutory nuisance. This can include service of a Community Protection Notice. A Council can serve such a notice if it considers there is anti-social behaviour having a detrimental effect on a community’s quality of life.
15. The Act also gives the victims of anti-social behaviour a right to ask for a review of their case, known as the ‘community trigger’. The Council accepts the following cases as activating the trigger:

• where someone has reported separate incidents of anti-social behaviour three times in the previous six months and they consider no action has followed.

16. If a request does not meet the trigger criteria then the Council should put its reasons in writing. It should explain how the person may still ask for a service to resolve the anti-social behaviour they report.

Background to Ms B’s complaint & Ombudsman approach to investigation

17. Ms B lives in a tower block in the Council’s area. Her complaint about noise focuses on a business which trades around forty metres away. Its trading identity has changed over time. But the premises have frequently been used for car repairs; either as its main business or associated with a related business such as car hire. The business uses a compressor and other machinery. Ms B hears the noise from this during the day, often into the evening and occasionally late at night. She also hears it when using the communal garden serving the block. Ms B also says there is anti-social behaviour associated with use of the premises. For example, littering and individuals urinating in the street.
18. Having studied the Council’s records, I noted several distinct periods of time when Ms B contacted the Council about the noise from the business. However, I have not identified any separate records associated with other alleged anti-social behaviour. My investigation therefore focuses on the Council’s response to reports of noise only.
19. I have identified the ‘start date’ for each of the episodes where Ms B reported problem noise below. I note there sometimes followed further contacts between Ms B and the Council. But in each instance at some point the contact stopped and there was a gap, measurable in months, where there was no contact between Ms B and the Council. Sometimes, the Council closed its record at this point. Although at other times (where signalled below) it did not close its record until sometime after Ms B’s last contact with it.
20. I noted above that we will not usually investigate complaints that are late. In this case I found all Ms B’s reports of noise from the business originated more than 12 months before her complaint to us. Some of her complaint therefore appeared late. However, I took the view we should investigate the complaint for the following reasons.

• Ms B made a complaint to the Council in July 2018, within 12 months of the last service request she had made that it respond to problem noise. She made her complaint to us within the next 12 months.
• In April 2019 Ms B made a subject access request under the Data Protection Act. The Council disclosed to her documents relevant to its response to her reports of noise. Some of the information disclosed, which Ms B had not seen before, added to her dissatisfaction and led her to want to pursue her complaint further.
• Ms B has a mental health diagnosis which I understand makes it difficult at times for her to process information and caused some delay in her pursuing the complaint.
• The events complained about were not so long ago that investigation would be impractical.
• I needed to distinguish between Ms B’s requests for a service and her complaint. A person may persist in reporting noise to the Council for some time without becoming dissatisfied with its service. They will not complain about a service until they become dissatisfied with it. They may only reach that judgment with a degree of hindsight when they consider their service requests have not led to a satisfactory outcome.

Ms B’s first contact from August 2013

21. I found Ms B first contacted the Council to report noise from the business premises in August 2013. The Council has limited records of its contacts with Ms B from this time. It made a note in October 2013 that Ms B was “unwilling to keep a diary” of the noise she experienced. In February 2014 it noted Ms B should use its ‘out of hours’ service to report noise in the late evenings. Ms B acknowledges not keeping a diary of the noise. She says completing one worsens her mental health condition.
22. The Council also made a note of two visits to the business in October 2013 and February 2014, which are brief. They indicate its environmental health officer heard no noise they considered likely to be a statutory nuisance.
23. The Council closed this record in September 2014. There is no note which explains what action, if any, it took to progress the case between February and September 2014. There is no note if it told Ms B of its decision to close the case or if it explained to her its reasons for doing so.

Ms B’s second contact in December 2014

24. The Council recorded a further contact from Ms B in December 2014 reporting noise from the business. The Council recorded visiting the business and seeing an employee using a “small hand-held grinder”. They saw no heavy cutting gear. There are no notes to suggest whether the Council took any other steps to investigate the noise or what communications it had with Ms B. For example, whether it gave advice to Ms B on keeping a record of the noise and its impact. There is also no record if it told Ms B of its decision to close the case in February 2015 or its reasons for that.

Ms B’s third contact from June 2015

25. Ms B contacted the Council’s planning enforcement service which investigated if the car business had planning permission to operate where it did. The service found the business did not have planning permission. However, as a car business had operated from the site for more than 10 years the Council could not take enforcement to prevent the use. It explained that decision in writing to Ms B.
26. Ms B received advice to therefore get back in touch with the Council’s environmental health service. The Council told her to provide a diary (or log) of incidents and/or to use the Council’s out of hours service to report noise late in the evening or at night.

Ms B’s fourth contact from December 2016

27. Ms B contacted the Council environmental health service again around this time. She had email communications with one of its officers. They asked details about when the noise took place, to clarify the location and so on. They encouraged Ms B to keep a diary of incidents and use the out of hours service to report incidents late in the evening or at night. The officer twice contacted the business to tell it that it was the subject of complaints, without revealing Ms B’s identity to it.
28. In February 2017 Ms B contacted the Council to say the business was about to use the compressor. She asked someone to visit but there is no record an officer attended or contacted Ms B immediately following her request. But in a conversation around a week later with an officer it appears the Council agreed to fit a sound meter to try and capture the noise Ms B reported. But there are no records showing the Council went on to do so.
29. The Council closed this case in March 2017. It had no record of Ms B completing any noise diary or contacting its out of hours service. I have seen no record of it telling Ms B it had closed its investigation or its reasons for doing so.

Ms B’s fifth contact from July 2017

30. Ms B contacted the Council again in August 2017. She asked the Council to use the community trigger because of persistent anti-social behaviour from the car business. She provided a petition signed by 13 other residents of the tower block, six of whom said they had complained about the business. It is understood some of these complaints were made to the local housing estate manager, employed by a Housing Association.
31. The Council said it could not refer the case to its community trigger panel as the request did not meet the relevant criteria. It said this was because it had received fewer than three complaints about the alleged anti-social behaviour in the previous six months. It also said it had not received support from Ms B in its investigation of noise. It said she had failed to provide diary sheets and refused to allow it to fit a noise meter in her flat.
32. After receiving this response Ms B agreed to the Council fitting a noise meter. The Council fitted this in her flat for around a week in September 2017. Ms B told me it fitted the meter in her living room on a shelving unit she uses as a room divider. She says the meter was fitted close to the internal wall of the room and not towards the window. Ms B said when she operated the meter her window was open but only slightly.
33. To coincide with operating the meter, Ms C also completed diary sheets explaining what noises caused her to do so. In total she operated the noise meter around 400 times. Ms C says the time this took explains why she had earlier been reluctant to complete diary sheets. She has also queried in communications with the Council if completing sheets would be effective. Ms C had also queried if the Council’s out of hour service would respond to contacts.
34. The Council made a detailed report of the noise recordings made by Ms B. While undated I understand one of its officers compiled this report in July 2018 after Ms B complained about the Council’s service (so nine months after Ms B made the recordings). I summarise the report as follows.

• Ms B recorded noise on nearly 400 occasions during the week. Most recordings took place during daytime hours although Ms B also recorded noise into the evenings to around 9:00pm. There were two recordings made after midnight but these were not recording noise from the business at the crux of this complaint.
• Ms B had provided a letter to accompany the noise diary. In it she said she had an oversensitivity to noise.
• Ms B reported no activity from the business on one day of the week. But the officer found the overall ‘sound profile’ of the recordings similar to other days.
• The officer could hear a compressor or grinder working at times. But they found the sound of trains and planes more prominent. They also noted foreground noise such as Ms B’s radio and television.
• The officer noted two intrusive noise events, one from banging metal and one from industrial machinery (such as a grinder or compressor) occurring between 7:00 and 8:00pm in the evening. This coincided with a lull in the usual background noise levels.
• The Council’s environmental health service had not received complaints about noise from the business from any other residents of the block.

35. Having noted these matters the report concluded there was no or insufficient evidence of noise amounting to a statutory nuisance the Council might prevent.
36. As noted above the Council did not compile this report contemporaneously. In March 2018 Ms B began contacting the officer to enquire about the results of the monitoring. The Council has a record of her sending seven further emails until July 2018, none of which received a reply. Ms B says she also telephoned for an update and received no reply.
37. In July 2018 the officer apologised for his lack of contact. He said pressure of work had delayed him working on the file. He also said technical problems had prevented recovery of the sound recordings. He explained he had been reluctant to tell Ms B this information as she would need to complete new diary sheets. The officer also explained any noise recorded would have limited or no evidential value because it was several months old. The officer encouraged Ms B to use the Council out of hours service if the noise persisted. He also suggested he could re-install the noise meter if wanted.

Ms B’s complaint to the Council and subject access request

38. In July 2018 Ms B made a complaint, frustrated at the Council’s response to her service requests. The letter of complaint also detailed other incidents where Ms B experienced unwanted noise or other forms of anti-social behaviour which pre-date 2013 and are not subject to this investigation. The Council provided general comments on these historic incidents before turning to the issue of noise from the business premises. It said it had not found evidence of a statutory nuisance but apologised for not sending Ms B details of the ‘monitoring outcome’. The Council also set out its understanding that Ms B found the noise from the business premises had now lessened. It explained how Ms B could escalate her complaint.
39. In April 2019 Ms B made a subject access request and received documents detailing the Council’s response to her reports of noise. This included the report of sound recordings referred to at paragraph 34 above. When Ms B received this she queried with the officer when he had made these notes. She referred to his correspondence in July 2018 which said technical problems had prevented recovery of information from the sound meter. The officer did not explain further but implied he had made the notes after Ms B complained. He also offered that Ms B could visit the Council offices and listen to the recordings if she wanted.
40. In June 2019 Ms B escalated her complaint. The Council wrote to her under the second stage of its complaint procedure. It apologised if Ms B felt she had not received a satisfactory service from the Council. But it said that it could not act in respect of the noise issue because there was no evidence of a statutory nuisance.
41. Part of Ms B’s complaint is also that at some point during the events described she took mobile phone footage when the business made noise late at night. Ms B also took footage of her television to show the time. The Council has not viewed this footage nor taken account of it in its decision. It says it cannot use such footage because it is not ‘usable evidence’ and mobile phones only capture low quality sound. The Council encourages use of its out of hours service instead.

My findings

42. As I explained in paragraph 4 our role is not to dispute a judgment reached by the Council, so long as we find that judgment reached properly. In approaching complaints which engage whether someone is experiencing noise amounting to a statutory nuisance, we must consider whether the Council has done all that is reasonably practicable to investigate. Government guidance, summarised above, is helpful in setting out what steps the Council could reasonably be expected to take.
43. Records are scarce to show how the Council investigated Ms B’s first reports of noise made in 2013 and 2014. However, it would appear the Council asked Ms B to compile some record of what she experienced as a diary and use its out of hours service. It also visited the business which was subject to the complaint and heard nothing which caused it concern. On balance, it appears it received little information from Ms B that would enable it to act against the business and it could not obtain evidence itself suggestive of a statutory nuisance. Nor is there any record Ms B explained any difficulties she may have completing a diary of events. Therefore, while the record is not comprehensive, there is no evidence of fault in its decision making.
44. There is also nothing that leads me to find fault in the Council’s response to Ms B’s planning enforcement enquiry. Ms B has made me aware of the history of businesses which have registered from the premises at the centre of the complaint. One of these may not have been associated with vehicle hire or repair. Ms B also points out these uses may full under different planning ‘use classes’. But I have seen nothing persuasive that which would lead me to think the Council was at fault for the enquiries it carried out in 2015.
45. There are more records to show how the Council responded in 2016 and 2017 to Ms B’s reports of recurring problem noise. I am satisfied the Council explained to Ms B the role she could play in gathering evidence which might help its investigation. There are consistent references to the Council asking Ms B to provide diary sheets and signposting her to its ‘out of hours’ service to report noise in the late evenings. I find no evidence Ms B agreed to the former until July 2017 nor explained problems she might have complying with this request. While there is no evidence at any point which shows Ms B has tried to access the out of hours service.
46. I consider this latter omission would hamper efforts by the Council to try and witness noise. I accept that it may have done more to try and witness the noise during daylight hours. But I can understand why the Council would likely put less value on this. Because clearly Ms B lives in an urban environment characterised by noises typical of such an environment. For example, the noise of trains and nearby commercial premises. I consider it reasonable therefore the Council focus its efforts on trying to witness noise outside usual business hours. Fitting a noise meter was good practice in these circumstances. I note Ms B’s concern the meter was not fitted in the most appropriate place to capture sound. It may have been preferable for the Council to have kept a note of why it located the meter where it did. But given the meter picked up multiple noise recordings I am not minded to think its position flawed the Council’s consideration of the noise Ms B reported.
47. While it is regrettable the Council did not listen to the noise recordings taken from the meter sooner, I find the analysis it later provided comprehensive. I find the officer considered the list of relevant factors in government guidance. They did not take account of any irrelevant factors. I am satisfied they properly reached their decision the recording did not provide evidence of statutory nuisance.
48. I recognise that Ms B feels the Council used her sensitivity to noise against her in reaching its findings. I find no fault in the Council’s consideration of that matter because it must retain objectivity in reaching its judgment. In deciding what is a statutory nuisance the Council must consider what an average person may experience, not one who has a greater or lesser sensitivity to noise. Ms B said she had a greater sensitivity to noise and the Council could not ignore that. Such an approach is not inconsistent with the Council’s duties under the Equality Act or human rights legislation. Although I also note this was not a decisive factor in its judgment. The Council cited many other reasons it could not conclude the noise she experiences, which it heard, was a statutory nuisance.
49. I am satisfied there is no further evidence which calls this judgment into question. I note that when Ms B made her request for the ‘community trigger’ several neighbours also said they had complained about the noise. But there is a lack of supporting records for such a statement. The Council says it has no records of such complaints and I have seen nothing to contradict that. I also note that if residents reported noise to the estate manager, that officer is not an employee of the Council. As such we could not find fault with the Council, for such concerns being passed on.
50. I also consider the Council can reasonably decide any mobile phone footage taken by Ms B does not undermine its judgment. I would not dismiss such footage as evidence. It can illustrate a noise someone finds disturbing and confirm what time it takes place. But clearly it will have less value than noises witnessed by officers or captured on sound recording devices. Because they will also take account of matters such as prevailing background noise, sound levels, other ‘noise events’ such as passing trains and so on.
51. I further find no fault in the Council not taking any other action in respect of the noise, such as using powers under anti-social behaviour legislation. I agree that Ms B did not satisfy the ‘community trigger’ criteria for the reasons it gave. I also do not find the Council has had scope to consider a community protection notice. This is after taking account of what its noise recordings found and the lack of corroboration from those neighbours who signed Ms B’s petition.
52. I recognise Ms B has found the Council’s position to date frustrating. If she continues to experience unwanted noise from the business premises then I would encourage her to report it again to the Council. She may also want to encourage neighbours to do the same as I accept her request for the community trigger suggested others in the block of flats may also have experienced unwanted noise.
53. While I find no reason to fault the Council’s view that it has not found sufficient reason to act against the business premises to date, a future investigation may reach different findings. I recognise Ms B found it particularly time consuming to complete diaries in 2017. So, in the event she makes a fresh complaint the Council may want to offer more guidance here on when this would be most appropriate. As I think it unlikely the Council expected Ms B to record every noise event she experienced as opposed to those most likely to cause a nuisance to her. I would also encourage Ms B to use the Council’s out-of-hours service and for officers to try and witness in person noise events if possible. Best practice may also be for the Council to liaise with a business to take voluntary measures to see if it can limit noisy activities that are the source of a complaint; even if the Council does not consider they are a statutory nuisance.
54. In summary therefore I find no fault in the Council’s view that Ms B has not experienced any problem noise which it might be able to prevent.
55. However, a secondary issue arises in this case which is about the Council’s customer service to Ms B. I found some examples of good practice. I consider the officer tasked to consider Ms B’s service request in December 2016 communicated effectively with her to understand the nature and extent of the noise. They did not appear unsympathetic to Ms B’s reports and encouraged her to report any further disturbance. They also provided a genuine apology with explanation when they replied to Ms B’s request for an update in July 2018. Although I recognise this was undermined for Ms B, by the failure to explain when recordings said to be unavailable later became available for study..
56. It was also only after several attempts and several months Ms B received that apology. This was poor customer service along with the confusion caused by the Council later producing notes of the sound meter recording which it had earlier said were unavailable. Basic good administrative practice is that those who report noise nuisance receive clear information on how the Council will respond to their requests. They should also receive regular updates on progress and closure letters giving reasons if the Council decides it cannot pursue a matter further. I saw little evidence the Council met such standards in this case. That justifies a finding of fault.
57. While this does not change the outcome to the Council’s investigation, such poor service has still caused injustice to Ms B. It has caused her unnecessary time, trouble and frustration in pursuing her complaints.

Agreed action

58. The Council accepts these findings. To remedy the injustice identified in paragraph 57 it has agreed that within 20 working days of this decision it will:

• Provide an apology to Ms B accepting the findings of this investigation.
• Pay Ms B £200 in recognition of her injustice.

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Final decision

59. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms B. The Council has agreed action to remedy this injustice in a way that I consider will provide a fair outcome to Ms B. Consequently, I am satisfied I can complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman